Citation Nr: 1416380
Decision Date: 04/14/14 Archive Date: 04/24/14
DOCKET NO. 09-41 200 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1. Entitlement to service connection for a right knee disability.
2. Entitlement to service connection for a left knee disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Jones, Associate Counsel
INTRODUCTION
The Veteran had active military service from August 1991 to August 1995 and from October 1996 to October 2000.
This matter comes before the Board of Veterans' Appeal (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for right and left knee disabilities.
In his October 2009 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge at the RO. In December 2010, he was notified that his Board hearing had been scheduled for February 4, 2011. However, he failed to appear for this hearing. He has not provided a reason for failing to appear and has not requested that another hearing be scheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.707(d) (2013).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims.
The Veteran contends that he began experiencing knee pain during service. His recent medical records reflect complaints of knee pain for many years. Service treatment records (STRs) note persistent complaints of pain from approximately January 1997 to September 1997. Additionally, an STR dated in September 1997 indicates an injury to the right knee.
The Veteran was afforded a VA examination in January 2009. The examiner diagnosed degenerative joint disease and determined that the present disability was not as least as likely as not due to or aggravated by service. However, the examiner did not provide a rationale for his opinion and it is not clear that he considered the Veteran's report of knee pain during and since service.
The Court has held that an examination is inadequate where the examiner formulates an opinion without considering the Veteran's statements. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, an examination is inadequate where the examiner does not review the medical history and provide a factually accurate rationale for the opinions provided in the examination report. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 303-4 (2008).
Therefore, a new VA examination must be scheduled to evaluate the nature and etiology of any current knee disability.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA examination to determine whether his current bilateral knee disability is related to military service. The examiner must review the claims file, including this remand, and note such review in an examination report or addendum.
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current disability of either knee had its onset in service or is otherwise related to a disease or injury in service.
The examiner should provide a rationale for any opinion provided. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered.
The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.
If the examiner discounts the Veteran's reports, the examiner should provide a reason for doing so.
2. Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
_________________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).